Posts Tagged ‘waiver programs’

FEBRUARY 6, 2012 VOLUME 19 NUMBER 5
Here’s an anecdote that we expect to see repeating itself over the next few years. It involves a fifteen-year-old boy with severe disabilities, and the Maine state Medicaid program. It also involves Maine’s efforts, like those of other states (including Arizona), to trim its eligibility roles for Medicaid, and the real problems that creates for individuals needing services.

CT (his full name is edited out of the reported court case) requires full-time, one-on-one adult supervision to prevent him from injuring himself. His mother applied for and got him on Maine’s program for home and community-based services, so that he could be cared for in a residential center or even at home rather than being institutionalized. That was in 2005 — two years after CT had been placed in a New Hampshire residential facility after failed trials in programs at his family home and in New Jersey.

CT’s mother assumed that getting him eligible for assistance from the State of Maine would mean that he would begin getting services — but that didn’t happen. The problem wasn’t his eligibility, but the availability of programs. He was placed on a waiting list in case a suitable placement opened up, but only twelve children in the state were getting services under the program and it didn’t look too promising.

Just after CT got eligible Maine decided to try to cut its Medicaid program by withdrawing its home and community-based services. Since those programs operate under a special waiver, it would be simple — Maine just stopped running a waiver program. But rather than re-institutionalize all patients already in the community, Maine announced that it would simply cut off new entries into the program, but would not remove services to those already receiving services.

Program officials assured CT’s mother that he would stay on the waiting list for placement. She received a letter from a program official telling her that Maine would “honor our mutual commitment to the children currently receiving, or those having already been approved for services in this waiver program.” Problem was, that letter was incorrect. Because CT was only eligible, not actually receiving services, he would be cut off from any future possible placement under the program.

Four years later CT’s mother finally got a residential home in Maine to make a proposal to care for CT. The proposal was contingent on funding through the waiver program he had been eligible for during those four years. Unfortunately, the Maine Medicaid agency denied the request, pointing to the 2005 cut-off of all new service requests.

CT’s mother appealed, arguing that she had relied on the state’s misrepresentations and that CT was injured by the reversal. The agency denied her again, and a judge upheld that denial. She appealed to the Maine Supreme Court.

The Supreme Court Justices upheld the denial of services for CT. They analyzed the arguments by applying the legal principle of “equitable estoppel.” Under that doctrine, the courts can give relief to someone who has relied on another person’s representations if that reliance has worked to their detriment. The courts can order a result that would not be possible under contractual or other theories, in order to prevent a miscarriage of justice.

There are at least two problems with the application of equitable estoppel to CT’s case, however. First, there is a general rule that one can not assert equitable estoppel claims against the state itself. If an agent of the state misrepresents state policy, that does not usually create a right to recover on behalf of someone who was injured by relying on that misrepresentation.

The second problem with applying equitable estoppel principles to CT’s case is more serious, though. The Supreme Court noted that, though CT (through his mother) relied on the state’s misrepresentation, he was not injured by that reliance. Yes, he was injured — by the withdrawal of eligibility that had previously been extended. But that injury did not occur because he relied on the state’s misrepresentation — it occurred because the state cut back its program.

The Court notes that if CT’s mother had found him a placement shortly after his eligibility, she could have gotten him into the waiver program before it was closed. But the Justices did not see any persuasive evidence that she would have found such a placement but for the misrepresentations that he would remain eligible for future placements if they opened up. Mrs. T v. Commissioner of Department of Health and Human Services, February 2, 2012.

What might CT’s mother have done if she had known how his eligibility would be cut off? She might have found him a placement in Maine more quickly, but in Maine, as in other states, there simply were not enough providers to take care of all the state’s residents with disabilities. As state budgets shrink, we can expect to see variations of CT’s story play out in other states as programs and services are withdrawn from a vulnerable and needy population.